Freedom of Expression as Concomitant to Democratic Decisionmaking

I take up below - it appears doubly paradoxical to deny, in the name of democ­racy, democratic bodies from determining for themselves whether freedom of expression is infringed by democratically enacted regulations.^[259]

2. the uncertain scope of the democratic right of freedom of expression. The argument we are considering is that the right of freedom of expression is derived from democratic decisionmaking through premises re­garding the citizenry’s need for information relevant to their role in the process of such decisionmaking. Butjust what are the boundaries of freedom of expres­sion on such a view? Some proponents of the democratic right would protect only “political speech,” fairly narrowly construed.^[260] At the other extreme, some democratic theorists would protect not only scientific and academic speech, but also art and entertainment as relevant to democratic decisionmaking.^[261] And although most democratic theorists restrict the corollary right of freedom of expression to an immunity from governmental censorship, some, such as Cass Sunstein and Owen Fiss, view freedom of expression as including a claim that government affirmatively provide information and otherwise regulate the me­dia to ensure that the correct number of views and informational programs are aired, and aired adequately.^{[262] [263]}

I find this capaciousness problem with the democratic theory of freedom of expression devastating.

Consider as well speech about the dangers or lack thereof of genetically- altered foods. Is that speech “political” and important for democratic decision­making, or is it “scientific” and outside the protection of freedom of expression? Or consider the religious clubs’ religiously interpreted views of political affairs that were at issue in Rosenberger.¹ “Political” or “religious”? Is speech by physicians warning patients about certain aspects of abortion of only medical and not political concern? Indeed, consider The Grapes of Wrath or Guernica. On which side of this divide do they fall, and why?

Moreover, the requirement that we decide whether expression is or is not central to democratic decisionmaking assumes as a metaphysical matter that we can separate expression into discrete units in answering this question. Consider a medical text that contains pictures of sexual organs. Suppose it is never read by medical students, but is instead read only by voyeurs who sexually fantasize over the pictures and do not read the text. Is this text “scientific” or “pornographic”? What is the unit of assessment - the text as a whole or just the pictures in which the audience is interested? And if the conclusion is that the text is pornographic, what do we do with the fact that the text’s pictures play a prominent role in a psychological or sociological study of the voyeurs who look at it, which study in turn plays a role in a public debate over pornography? Similarly, is a racial epithet in Huckleberry Finn the unit of expression to be assessed, or is it the novel as a whole, and why? The democratic theory, to the extent that it protects only that expression of relevance to democratic decisionmaking, needs a way to make these distinctions.

Finally, recall the point of Chapter Two and its rejection of principle (4). All governmental regulations and their alternatives have message effects. And all regulations and their alternatives will have message effects that are relevant to democratic decisionmaking, even on the narrowest construction thereof. If the right of freedom of expression is meant to protect receipt of information and arguments relevant to democratic decisionmaking, then principle (4) should be within the scope of that right, and we should be concerned with the message effects of governmental actions, not just with government’s reasons for acting (principle (5)). But principle (4) Track Two jurisprudence is wholly unworkable and ultimately requires the government itself, qua the courts, to decide what information and arguments the citizens need for democratic decisionmaking. And that violation of evaluative neutrality in deciding whether or not to inval­idate acts taken by democratic institutions appears to be antidemocratic rather than a corollary of democracy.

B. Public Discourse Theory

There is a form of the democratic argument for freedom of expression that merits independent treatment. I refer to the “public discourse” theory of freedom of expression associated with Robert Post and James Weinstein.^[265] According to this theory, the democratic will is legitimate only if it reflects “public opinion.” And the latter is a legitimate basis for the democratic will only if it is formed under conditions of freedom. This does not mean, however, that all expression must remain unregulated. Rather, what is necessary is that expression that is part of public discourse - the exchange of ideas that forms public opinion - be left free of Track One censorship and be regulated on Track Two only if adequate alternative channels of communication are available.^[266]

The most fundamental problem with the public discourse theory of freedom of expression is its arbitrariness in specifying what lies within and without public discourse.

Consider some of the examples raised earlier in the discussion of the demo­cratic theory of freedom of expression. Post states that commercial speech is not part of public discourse. But how then do we treat Nike’s ads responding to claims that it mistreats foreign workers (or Exxon’s ads proclaiming that it loves the environment)? Are these “commercial,” and hence out, or “political,” and hence in? I think the correct answer has to be “yes,” which indicates that the question is ill-formed. The same applies to other attempts to categorize speech: Is speech condemning genetically modified foods (“Frankenfoods”) “scientific” or “political”? Is Guernica art or politics?

Likewise, Weinstein asserts that professional speech - for example, that of lawyers and physicians acting in their professional capacities - lies outside public discourse.^[270] But again, consider the example in Chapter Four of the lawyer who reveals a client’s confidential communication that bears directly on an upcoming election. Is the lawyer’s communication “professional” or “political”? Again, the correct answer is that this poses a false dichotomy.

Weinstein asserts that harmful misinformation written on the instructions accompanying a medical prescription is different in kind from the same harmful misinformation published in a cookbook.^[271] He concludes that the latter but not the former should receive constitutional protection because “books” but not “medicine labels” are part of public discourse. It is hard to believe, however, that a court would, much less should, treat, say, reckless medical advice given by a physician or pharmacist differently depending upon whether it is published in a book or given to a single patient. If anything, the case for excluding the book is stronger, given its greater potential for harm.

Sometimes Post and Weinstein define media of public discourse by the type of message at issue. Sometimes, however, they define it by the tangible form by which it is communicated - by film versus by live performance, or by book versus by label.^[272] Needless to say, those are very different kinds of distinctions that implicate different governmental concerns and have different ramifications. On the other hand, if the governmental concern is solely with the message and not with the effects of the particular medium chosen - in other words, if we are dealing with a Track One rather than a Track Two law - then it is hard to fathom why the medium, and whether it is deemed a medium of “public discourse,” should at all matter.

Moreover, the proponents of the public discourse theory apparently require that the medium of expression be calculated to convey ideas to the public at large rather than merely to one’s intimates.^[273] Yet, drawing a line between expression that is in public from that which is in private looks hopeless. Suppose I tell a secret to someone I know to be a gossip. Or suppose a government official leaks information to a reporter. Are these instances of expression “in public”? Suppose I write a paper for a group of fifteen scholars. Is that public discourse? They may, of course, reconvey my ideas in their own work. Or they may not. And what if I publish a book that sells only one copy - to my cousin? All expression has the capacity to be conveyed or reconveyed in some form “to the public.” Indeed, no expression would raise an issue of freedom of expression unless it had somehow become public enough to result in a civil or criminal lawsuit.

In sum, the public discourse theory of freedom of expression encounters the problem encountered by any theory that seeks to divide expression into various categories based on content - such as, political expression, religious expression,^[274] scientific expression, artistic expression, professional expression, and commercial expression. Those divisions, although they may reflect certain amorphous sociological realities, have no deep metaphysical basis. And bor­derline instances - instances of expression that arguably fall into more than one category - are, I suspect, the rule rather than the exception. And likewise, what counts as a unit of expression is metaphysically empty - what is a violent car­toon (“entertainment”) that is discussed by sociologists (“academic”), whose findings are debated politically (“political”)?^[275]

Dividing speech into content-based categories such as “political,” “reli­gious,” “commercial,” and so forth, and then treating some categories as virtu­ally immune from governmental regulation and others as easily regulable has been a constant temptation for many freedom of expression theorists and for the United States Supreme Court. Of course, that division of expression into content categories is of no use in dealing with Track Two laws, given that every possible set of Track Two laws will have message effects within every category. And the division into categories provides no help in analyzing Track Three issues.

Even confined to Track One, however, the categories approach is ultimately unsuccessful. First, to repeat points made above, expression does not fall into one category or another. Neither the categories nor the determination of what is the relevant unit of expression reflect any metaphysical reality.

Second, the categories approach, with its corollary that some categories of expression warrant more protection (at least on Track One) than others, vio­lates evaluative neutrality. You and I may agree that political speech is more valuable than the typical contents of the National Enquirer. Indeed, almost everyone would agree with us, including almost every reader of the National Enquirer. Yet, what makes our judgment reasonable, such that we may legiti­mately impose it on a solitary dissenter, that does not make my judgment that Bill Clinton was superior to George Bush, or that most multiculturalist apologia are rubbish, “reasonable” as well? Controversiality surely does not determine reasonableness as a matter of legitimate governmental action. As an epistemic matter, we can be more confident of judgments with which most others would concur. Nevertheless, if that is what is at stake, freedom of expression looks less like a protection of the lonely dissenter and more like a crude and costly bulwark against entrenching error. Furthermore, a noncontroversiality approach to the relative value of categories of expression does not, in principle, prevent categorization within categories such as political or religious expression that would cordon from protection political or religious views that almost all of us believe are worthless.^[276]

The question whether speech is part of public discourse is, as Post admits, a deeply evaluative one regarding the relation of the speech to a proper conception of democratic decisionmaking.^[277] The problem is that any conception of the autonomy required by democracy will be based on an evaluation regarding autonomy’s requisite knowledge, skill, and character that from another angle can be viewed as a heteronymous imposition. Post argues that this paradox of the heteronymous construction of autonomy is, like other antinomies such as that of free will and determinism, unavoidable, and should therefore be embraced. If Post is correct, something like a categorical approach is perhaps inevitable, with only judgment and not algorithms available for drawing lines.^[278]

The problems with the category of public discourse are illustrated by Post’s own writings. Post takes a capacious view of public discourse, including within it, among other things, racist hate speech^[279] and crude and ugly satirical car­toons.^[280] But surely the judgment including these items within public discourse is contestable. Indeed, it is difficult to discern how, if these are within public discourse, the latter is not coextensive with all expression within principle (5). What does a heckler’s shout of “nigger” contribute to democratic decisionmak­ing that, say, gossip about Madonna’s love life does not?

Moreover, Post does not discuss when the protection of expression within public discourse can be overridden due to the harms it causes both from its production (Track Two) and from the receipt of its messages. Presumably, Post would allow government to punish those who reveal classified information and confidential communications, who infringe others’ copyrights, who make dan­gerous misrepresentations, or who solicit criminal acts, even if the messages fell within “public discourse” as Post would define it. If so, then we need some way to balance public discourse concerns against harms to secrecy, confidentiality, property, and bodily integrity. Post provides us with no weights to place in the balance.

C. Limiting the Human Right of Freedom of Expression to Democracies

The democratic theory of freedom of expression is necessarily limited to demo­cratic regimes. Yet most who argue for a human right of freedom of expression do not restrict themselves to such regimes. Indeed, the international human rights conventions that contain the right of freedom of expression do not so limit the right’s application. And it is commonplace to condemn nondemo- cratic regimes for trampling on human rights, including the right of freedom of expression. If freedom of expression were a right only in a democracy, non- democratic regimes could not violate it.

A proponent of the democracy theory might respond that there is a human right to a democratic form of government, and that the human right of freedom of expression is derived from it. Thus, when we criticize nondemocratic regimes for denials of freedom of expression, we are in actuality criticizing them for their lack of democracy and its corollaries.

I am skeptical about the putative right to a democratic form of government. Jeremy Waldron, Scott Shapiro, and Thomas Christiano, among others, have made strong cases for such a right;^[281] but I remain unconvinced that the case for democracy can be anything other than an instrumental one, premised on democracy’s comparative advantage in reaching morally correct decisions.^[282] To pose the issue between us starkly, I doubt that a wise and just person who possesses the technological ability to impose his otherwise morally justified decisions on others with impunity violates anyone’s rights when he does so. Despite attempts to support democracy by reference to people’s ability to control their own lives, governmental decisionmaking involves some people’s ability to control the lives of others. Nor does any persuasive notion of moral respect require that one accede to others’ decision to commit what one believes to be an injustice against third parties.

Even if I am wrong, however, and the case for a human right to democracy can be established, I still doubt that the objections we have to the suppres­sion of expression in nondemocratic states derives entirely from their being nondemocratic. Rather, I believe that the objection, whether or not well- founded, rests on grounds that are independent of the form of government.

IV.